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Canada’s Anti-Spam Legislation Review

8 min read

A large portion of Canada’s Anti-Spam Law went into effect on July 1, 2014. Section 6 of the legislation specifically deals with commercial electronic messages, or CEM, which includes email, text, and chat. Chat also applies to direct messages or private chat messages through social media platforms.

This law concerns you because it applies to ANY account located within Canada on your marketing list. The documentation says that it does not apply to server relaying but does apply when the message originates from a computer in Canada.

The documentation is somewhat ambiguous because it constantly states that offenders will be judged on a case-by-case basis. I assume they are looking for the mass spammers but we still need to make sure that we are following the law.

Penalties are stiff for those who are judged in violation. An individual can be fined up to 1 million PER violation and a company up to 10 million PER violation. They are calling it an “administrative monetary penalty”.

You can still market to Canadians legitimately if the following requirements are in place:

1)      You must obtain explicit consent

2)      You must retain proof of consent

3)      You must provide identification information

4)      You must provide an unsubscribe mechanism

Ethical marketers have been complying voluntarily with #3 & #4 for some time now. It’s worth pointing our that #3 requires the name of your business, its address (post office boxes are acceptable), phone number, and email address.

Most of us are focused on covering #1 and #2, which deal with consent.

Requirement 1: Obtain explicit or express consent. You must now have the active consent of the consumer, passive consent by inaction or lack of objection is no longer enough. It is crucial to note that inaction is no longer considered express consent. Express or explicit consent refers to the consumer consenting to receiving marketing from you and/or your company either verbally or in writing. Therefore, the pre-checked boxes many of us use for newsletter or offer sign ups are NOT acceptable. The box must be unchecked and the recipient must manually opt-in.

The law assumes consent is implied for a period of 36 months (3 years). Consent ends after 36 months or as soon as the consumer indicates they are no longer interested by means such as an email or clicking an unsubscribe button.

Requirement 2: Retain proof of explicit or express consent. The onus is now on the marketer to prove that the consumer gave active consent to your marketing messages! You must keep a record of consent transactions.

Consider including the following in your tracking notes: The method (written or verbal) of obtaining consent, the date, the reason for consent, and the medium (website form, email, personal transaction, phone call, etc.).

What Constitutes Consent?

There are many media through which a consumer can give express or complicit consent. Here are a few, and some of the rules that apply to each medium:

Personal Transaction

If a person verbally requests to be added to your newsletter or email list, that is obviously express consent. If someone hands you their business card, they are providing contact information, and that can be considered consent under certain conditions:

1)      What you are marketing applies to their role or duties in their career capacity

2)      The card bearer did not specifically tell you they do not wish to receive promotional messages from you

Email

Any email that goes out that has an “offer” included must meet requirements 1-4 as listed above, even if it is one email to one person. If you don’t want to include your physical address, you can add a link to the information. The requirement for an unsubscribe mechanism means that you must let people know that if they ask you to stop sending emails, you will oblige. This must be made clear on ALL your emails that include a promotion or marketing.

Referral Email or Chat

In the case of contacting an individual because they have been referred to you, certain conditions must be met for the email to be considered acceptable:

1)      The referral must be made by an individual who has an existing business or personal relationship with both you and the person who is referred to receive the CEM.

2)      CEM text must include the full name of the individual who made the referral and an explanation that the CEM is being sent as a result of the referral.

3)      Identification information for sender

4)      Unsubscribe mechanism

5)      Only one referral CEM is allowed without express consent from the recipient, you can’t keep sending email to the referral if they do not respond.

 

Memberships

Consent to receive CEMs is implied and acceptable when the person joins your membership.  This applies to members of an association, club or voluntary organization.

Social Media

If you are sending CEM by private or direct messages on chat programs for social media such as facebook or twitter, you must still meet the four requirements for CEM as listed above, or you can get in trouble! As with everything else, social media spam will be dealt with on a case-by-case basis and will be evaluated based on the personal relationship between the sender and receiver. The legislation says passive consent by friending or following a person or business on social media is NOT sufficient enough to constitute a personal relationship or explicit consent.

Unknown Third Parties

If you share your email addresses with affiliates (that the receiver doesn’t have a relationship with) and the affiliate begins emailing or messaging your list, YOU are responsible to notify those affiliates when the recipient unsubscribes. You are held responsible unless the recipient has given express consent to those third parties, which then makes it a direct relationship between your affiliate and that receiver.

Summary

Honestly, if you are an ethical marketer and have acquired your list legitimately (as opposed to purchasing names or signing people up without their permission), you are not the marketers this law is targeting. Of course, mistakes can be made – just be sure you’ve got all your bases covered and you are recording how the marketing relationship was initiated and the express consent of the recipients.

You may be tempted to send out a bunch of emails asking people if you can send them your newsletter, but guess what? A message sent seeking consent to send CEMs is also considered a CEM!

The above is my interpretation of the law, but I am NOT a lawyer, I recommend you take the time to review the Canadian Anti-Spam Law for yourself and discuss it with your legal counsel .  If you’d like to report spam in Canada, visit Fightspam.gc.ca.

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